Monday, June 25, 2012

ROUNDHOUSE ROUNDUP: Private Emails, Public Property

A version of this was published in The Santa Fe New MexicanJune 24 2012

Gov. Susana Martinez isn’t the first New Mexico politician to cause controversy by using private email accounts to communicate about public policy.

Three years ago in Las Vegas, N.M., the late former Mayor Tony Marquez was in a similar, if not identical situation.

And the response by Attorney General Gary King’s office might be an indication of how King might respond to a request by two legislators to investigate a May 2 email sent from a Public Education Department spokesman’s private email account to Gov. Martinez’s political director and several administration officials (on personal email accounts.)

Sen. Linda Lopez and Rep. Rick Miera, both Albuquerque Democrats, are mostly concerned that government employees might have been doing political work for the governor. But they also want King to look at “high government officials using private email accounts to shield their activities.”

In early 2009, the Las Vegas Optic was trying to receive email messages between Marquez and City Council members. The newspaper filed a a formal public records request.

However, City Attorney Carlos Quiñones believed the city had no obligation to release those emails, because they all were on the personal accounts of the mayor and council members. So the city responded to the Optic’s request saying it couldn’t locate any of those emails on the city’s email server.

At some point, according to an Associated Press story, the paper received — through some unofficial channel — copies of about 20 emails between the mayor and his councilors, all on private accounts. Many of those had been copied to the city attorney. The Optic complained to the Attorney General’s Office.

On July 31, 2009, Assistant Attorney General Leslie Lowe wrote to the Las Vegas city clerk, saying she disagreed with Quiñones’ argument that the city didn’t have to turn over private emails. Rowe, reading from Inspection of Public Records Act, informed the city that “public records” means “all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business.”

“My interpretation of this section makes the mayor’s emails, without regard to the account he uses, public records, if they relate to public business, and subject to disclosure.”

Apparently this advice didn’t immediately settle the issue. According to The Associated Press, Quiñones wrote back to Lowe saying Mayor Marquez would voluntarily give up the emails from his private account. But he still argued, “There is no specific legal authority in New Mexico providing for the inspection of private email accounts of government officials.” He contended the Legislature would have to amend the law to specify that personal emails are subject to the Inspection of Public Records Act.

Finally in September, the city handed over more than 100 pages of emails to the Optic. But that wasn’t the end of it. In March 2010, the Optic complained to the attorney general that the city had violated the Open Meetings Act — which forbids public business being discussed by a quorum of the governing body outside of a public meeting.

But the funniest thing to come out of the Las Vegas situation was a headline in the Optic in October 2009 after the paper uncovered a memo from Quiñones to various city officials.

Apparently the city attorney was still steamed about that initial batch of private emails between the mayor and the councilors that the Optic got its hands on. Giving those emails to the press was a breach of confidentiality, Quiñones claimed.